To succeed with an indirect discrimination claim, is it necessary to establish the reason for the particular disadvantage to which a group is put, compared to another?
No, held the Supreme Court in the decisions of Essop and others v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice.
The essential element is a causal connection between the provision, criterion or practice (‘PCP’) and the disadvantage suffered, not only by the group, but also by the individual.
In these important judgments, the Supreme Court has provided much needed clarification of the law and described a number of features of indirect discrimination with lots of helpful examples designed to assist.
Lady Hale explains that there are various reasons, or ‘context factors’ why one group may find it harder to comply with the PCP than others. They can be genetic, social, or even another PCP.
The PCP does not need to put every member of the group sharing the protected characteristic at a disadvantage.
The disparate impact or disadvantage can be established on the basis of statistics. Finally, the PCP may be able to be justified and there is no stigma or shame in doing so.
Thanks to Claire Scott of Burness Paull LLP for preparing this case summary.